Editorial

On 13 August 2011 Deputy Chief
Justice Dikgang Moseneke
delivered the keynote address at the Annual General Conference of the South
African Chapter of the International Association of Women Judges held on the
Potchefstroom Campus of the North-West University. We are pleased to open
this edition with this address in which he concluded: "We need judges who are
needs driven and who are determined to vindicate rights of aggrieved litigants
impartially and without fear or favour. That deep instinct of fairness which
seems to abound in women would be a great asset to our judiciary."

In this edition we furthermore publish five articles, one
note and three case notes.

Articles

In their article Chuks Okpaluba
of the University of Fort
Hare and Lawrence Juma
of Rhodes University endeavour to isolate the emerging
approaches to the determination of actual or apparent bias in adjudication by
analysing topical South African case law.

Against the background of the reconceptualisation of
indigenous land rights Elmien du Plessis
of the University of Johannesburg
addresses the questions whether it would be possible to classify the
indigenous land rights system as a commons, and if it would provide a useful
analytical framework in which to solve the problem of securing land tenure in
South Africa.

Shannon Bosch and Marelie Maritz
of the University of
Kwazulu-Natal consider the role private security contractors (PSCs) play in
armed conflicts and their status in international humanitarian law before
weighing the effectiveness and constitutionality of South African legislation
in terms of which PSCs are regulated and mercenarism is outlawed.Against the background of the often-unseen social and
challenges faced by mentally ill patients, Magdaleen Swanepoel
of the University of South Africa considers the human rights that influence the
mentally ill patient in South African medical law.

The overall onus that faces employers and employees when
determining whether a dismissal from employment was acceptable or not is the
focus of an analysis of South African labour legislation by
Riaz Ismail and
Itumeleng Tshoose of the University of South Africa.

Note

David Brimer
, Partner, Schindlers Attorneys in Johannesburg
and Alan Brimer
, Professor Emeritus of the University of KwaZulu-Natal (father
and son) critically comment (with some almost irreverent examples from
Scripture as addendum) on positivistic lawyers' "usual attempt to catch the
meaning of a thing by entangling it in a net of words."

Case notes

Chris-James Pretorius of the
University of South Africa discusses the question whether the material mistake
of a contractual party induced by the fraud of an independent third party
could sustain a plea of iustus error raised by the mistaken party as
dealt with by the South African Supreme Court of Appeal in 2011.

Linda Muswaka
of the North-West University (Mafikeng
Campus) discusses the possibility of an author being sued for infringement
even though he has acquired copyright in a work that he created by making
unauthorised adaptations to another's copyright material with reference to a
judgment of the South African Supreme Court of Appeal of 2006 with comparative
reference to the position in the UK.

With reference to a judgment of the South African
Constitutional Court of 2011 dealing with occupational health and safety,
Itumeleng Tshoose
of the University of South Africa advocates the introduction
of a unified system of occupational health and safety.

Recent Submissions

In the Mankayai v Anglogold Ashant Ltd 2011 32 ILJ 545 (CC) the Constitutional Court was called upon to give meaning and content by interpreting the provision of section 35 of Compensation for Occupational Injuries and ...

In Slip Knot Investments v Du Toit 2011 4 SA 72 (SCA) the Supreme Court of Appeal had to determine if the material mistake of a contractual party induced by the fraud of an independent third party could sustain a plea of ...

The lawyer’s usual attempt to catch the meaning of a thing by entangling it in a net of words is based on a common misapprehension of the way words work. The great minds of the ages have since time immemorial reminded us ...

The main objective of this article is to analyse the issue of onus emanating from the enforcement of unilateral changes to conditions of employment. At the heart of the controversy that has faced the Labour Appeal Court ...

The personalised nature of mental illness obscures from general view the intolerable burden of private and public distress that people with serious mental illness carry. Invariably the mentally ill person encounters rejection ...

South Africa has adopted two pieces of legislation since 1998 aimed at restricting one of the fastest growing sectors of the global economy: the private security industry. Not only is this legislation completely unique, ...

It is often stated that indigenous law confers no property rights in land. Okoth-Ogenda reconceptualised indigenous land rights by debunking the myth that indige-nous land rights systems are necessarily "communal" in nature, ...

This article takes a critical look at the divergent approaches of courts in constructing the meaning of actual and apparent bias in adjudicative contexts. It argues that while proving actual bias on the part of an adjudicator ...